WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The Migration Legislation Amendment (Immigration
Detainees) Bill 2001 (the No. 1 Bill) was introduced into the House
of Representatives on 5 April 2001. It increased the penalty for
escaping from immigration detention, made it an offence for
immigration detainees to manufacture or possess weapons,
established a regime for strip searching immigration detainees, and
introduced security monitoring provisions governing visitors to
detention centres.

Background information about Australia's system
of immigration detention and Commonwealth laws relating to searches
of the person can be found in the Bills Digest for the No. 1 Bill
(Bills
Digestno. 131 of 2000-2001).

The provisions relating to strip searching
produced some controversy.(1) On 21 June 2001,
Government amendments to the Bill in the House of Representatives
removed the provisions relating to strip searching immigration
detainees.(2) The Bill, as amended, was then agreed to
and also passed the Senate. The Bill received Royal Assent on 18
July 2001.(3) The Migration Legislation Amendment
(Immigration Detainees) Bill (No. 2) 2001 (the No. 2 Bill)
re-introduces the strip searching provisions with some
modifications. The Minister said in his Second Reading Speech:

I would also like to highlight two new measures
that have been incorporated in this Bill as a result of my
discussions with the Shadow Minister for Immigration and
Multicultural Affairs.

First, a search can now only be authorised by
very senior officers in the central office of my department,
namely, the Secretary or a Senior Executive Service Band 3 employee
such as the Deputy Secretary.

Second, a detainee who is to be searched will be
able to nominate another person to attend the strip
search.(4)

The Minister also noted that a draft protocol
governing the exercise of strip searching powers, which he
foreshadowed when introducing the No. 1 Bill, had been settled in
conjunction with the Attorney-General and would be 'incorporated
into written directions pursuant to section 499 of the Migration
Act'.(5)

Immigration detention continues to be in the
news. For example, on 26 May 2001, Commonwealth and State police,
DIMA and Australian Protective Services officers, and Australasian
Correctional Management raided the Port Hedland Detention Centre in
order to arrest detainees alleged to have rioted at the Centre on
11 May 2001.(6) On 30 May 2001, Amnesty International
issued its annual assessment of Australia and criticised
Australia's policy of immigration detention.(7) On 2
June 2001 there was a disturbance which reportedly involved up to
200 detainees at the Curtin Detention Centre.(8) In
early June 2001, seven detainees escaped from the Woomera Detention
Centre.(9) On 18 June 2001, the Joint Standing Committee
on Foreign Affairs, Defence and Trade presented its report entitled
Visits to Immigration Detention Centres.(10) In
mid-2001, it was reported that the United Nations High Commissioner
for Refugees had criticised a number of countries, including
Australia, for their handling of asylum seekers.(11) On
9 July 2001, the Minister for Immigration and Multicultural Affairs
issued a press release detailing progress on implementing
recommendations from the Flood Report on immigration detention
facilities.(12) In early July 2001, it was reported that
the Minister had issued a tender for an organisation to provide
probity advice on how to select a group to manage Australia's
detention centres.(13) On 19 July 2001, 23 detainees
escaped from the Villawood Detention Centre.(14) A
further 23 detainees escaped on 22 July 2001.(15)
Following these escapes, the Minister ordered a review of security
needs and procedures at Villawood and flagged a review of
contractual arrangements.(16) On 26 July 2001, a
Nigerian man in the Villawood Detention Centre died, a suspected
suicide.(17) At the time of writing, further
developments were occurring. For instance, the Minister
foreshadowed tightened security at the Villawood Detention Centre
after receiving a report about the escapes.(18)

Although this Bill's provisions largely
replicate proposed sections 252A-252F in the No. 1 Bill, for ease
of reference the provisions will be described again in this Digest.
Substantive differences between the strip searching regimes in the
No. 1 and No. 2 Bills will be highlighted.

New section 252A(2) defines a
'strip search' as a search of a detainee which may include
requiring the detainee to remove some or all of their clothing and
examining their clothing or body. It specifically excludes body
cavity searches.

Such searches can be conducted without a warrant
[new subsection 252A(1)].

An 'officer' seeking a strip search
authorisation must suspect on reasonable grounds that:

the detainee has a hidden weapon or thing capable of causing
injury or assisting in an escape [new paragraph
252A(3)(a)], and

it is necessary to conduct a strip search to recover the weapon
or thing [new paragraph 252A(3)(b)].

Under the Migration Act, 'an officer' means a
Department of Immigration and Multicultural Affairs (DIMA) officer,
a Customs or Australian Protective Services officer, a police
officer or a person authorised by the Minister under subsection
5(1) of the Act. Persons who have been authorised by the Minister
include employees of Australasian Correctional Management Pty
Ltd(19) and other companies.(20)

The No. 1 Bill provided that a strip search
could be authorised by an authorised SES(21), an acting
SES DIMA employee, or an authorised DIMA
employee.(22)

The No. 2 Bill makes a number of changes to the
authorisation provisions:

first, only the Secretary or acting Secretary(23) of
DIMA, an SES Band 3 DIMA employee or acting Band 3 employee can
authorise a strip search [new paragraph 252A(3)(c)
and new subsection 252A(8)]. The DIMA's Annual
Report for 1999-2000 shows that at 30 June 2000 there was one
SES Band 3 employee in the Department.(24)

second, this power cannot be delegated [new subsection
252A(6)].

The authorising officer must be satisfied that
there are reasonable grounds for the suspicions held by the
'officer' making the application [new paragraph
252A(3)(c)].

The person authorising the strip search cannot
be the same person as the person who applied for the authorisation
or the person who will be conducting the strip search [new
paragraph 252A(3)(c)].

If the application and authorisation
preconditions are met, a strip search may be conducted by an
'authorised officer' without a warrant [new subsection
252A(1)]. The expression 'authorised officer' is defined
in subsection 5(1) of the Migration Act in the following way:
'[authorised officer] when used in a provision of this Act, means
an officer authorised in writing by the Minister or the Secretary
for the purposes of that provision'. Such a person might include an
immigration detention centre guard who is appropriately authorised
under the Migration Act.

The strip search authorisation must be recorded
in writing and signed by the person giving the authorisation within
one 'business day'(25) of the authorisation being given
[new subsection 252A(4)]. However, failure to
comply with these requirements does not invalidate the search
[new subsection 252A(5)].

The general rules for conducting a strip search
are set out in new section 252B. For example, a
strip search:

must not subject the detainee to more indignity than is
reasonably necessary(26)

must be conducted in a private area(27)

cannot involve a search of the detainee's body
cavities(28)

must not involve the removal of more clothing or more visual
inspection than is reasonably necessary(29)

must not be conducted with greater force than is reasonably
necessary.(30)

An additional requirement contained in the No. 2
Bill is that a strip search of a competent adult detainee must be
conducted in the presence of a nominee of the detainee-if that
person is 'readily available at the same place as the detainee, and
willing to attend the strip search within a reasonable time'
[new paragraph 252B(1)(h)]. However, a detainee's
failure or refusal to nominate a person or their inability to
nominate a person who can attend does not prevent a strip search
being carried out [new subsection 252B(4)].

Special rules relating to minors, 'incapable
persons' and gender are found in new section
252B.

Detainees aged less than 10 years cannot be
strip searched.(31) For detainees aged 10 years but
under 18 years, or detainees who are incapable of managing their
own affairs, the strip search must be conducted in the presence of
the person's parent or guardian (if at the detention centre and
available) or another person who is independent, able to represent
the detainee's interests and acceptable to the
detainee.(32)

With certain exceptions, a strip search must be
conducted by an authorised officer who is the same sex as the
detainee.(33) It must not be carried out in the presence
or view of a person of the opposite sex to the detainee-unless that
person is a parent, guardian or person representing the detainee's
interests.(34) An authorised officer can be assisted in
carrying out the strip search by another person.(35) The
person assisting cannot be a person of the opposite sex to the
detainee, unless the person is a doctor and a doctor of the same
sex is not available within a reasonable time.(36)

New subsection 252B(6) provides
immunity against criminal or civil liability for a person who is
asked to assist in a strip search and does so in good faith and
within the parameters of newsection
252B.

New section 252C enables items
found during the course of a strip search to be retained if they
provide evidence of the commission of an offence against the
Migration Act or if they are forfeitable to the Commonwealth.
Forfeitable items include weapons and things that might be used to
assist an escape from a detention centre. Forfeited items must be
given to a police officer. With exceptions, an item must be
returned to the detainee if it is not to be used in evidence or 60
days has elapsed.

New section 252D provides that
an authorised officer may apply to a magistrate to retain an item
seized as the result of a strip search.

Under new subsections 252E(1) and
(2) a magistrate may grant the application and, if so,
must specify time period for the retention of the thing.

New subsections 252E(3) and (4)
are designed to address any separation of powers issues that could
arise when a magistrate who otherwise exercises federal judicial
power carries out a non-judicial function-in this case, when making
an order for the retention of an item seized during a strip search.
They do so by providing that the magistrate's power is exercised
voluntarily and in a personal capacity.(37)Immigration detainees
held in State or Territory correctional institutions

If a detainee is held in immigration detention
in a State or Territory prison or remand centre, any laws of the
relevant State or Territory relating to personal searches apply to
that detainee and displace new section 252A [new subsection
252A(1) and new section 252F].

Readers of this Digest are referred to the
Concluding Comments in Bills Digest No. 131 of 2000-2001
for a discussion of issues such as duty of care and legislating for
the strip searching of immigration detainees. While there are
changes in the No. 2 Bill, those comments remain generally
relevant.

See, for example Commonwealth of Australia Gazette No.
GN 22, 7 June 2000 authorising a number of employees of Pacific Rim
Employment Pty Ltd to be officers for the purpose of the Migration
Act. Pacific Rim Employment Pty Ltd is a wholly owned subsidiary of
Wackenhut Corrections Corporation.

Senior Executive Service.

See paragraph 252A(3)(c) of the No. 1 Bill.

Public Service Act 1999 and Acts Interpretation
Act 1901.

See Appendices 2 and 3.

The expression 'business day' is defined as a day that is not a
Saturday, Sunday or public holiday in the place where the
authorisation is given [new subsection
252A(8)].

New paragraph 252B(1)(a).

New paragraph 252B(1)(b).

New paragraph 252B(1)(i).

New paragraph 252B(1)(j).

New paragraph 252B(1)(k).

New paragraph 252B(1)(f).

New paragraph 252B(1)(g).

New paragraph 252B(1)(c).

New paragraphs 252B(1)(d) and (g) and new subsections
252B(2) and (3) .

New subsection 252B(5).

New subsection 252B(5).

These provisions respond to High Court decisions such as
Grollo v. Palmer (1995) 184 CLR 348.

Jennifer Norberry
2 August 2001
Bills Digest Service
Information and Research Services

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